Russia vs international sanctions. Act 2.

You might have heard that this summer Russia was struck not only by COVID 19, but also by a quite unexpected exercise aiming at introducing some changes in the «main law of the Russian Federation» — the Constitution.

To keep the story short, these were introduced (as adopted by an all-Russian voting (duh!)) and came into effect from July 04, 2020.

Back in the day, while reviewing draft and its the potential of a Russian “anti-sanctions” instrument I was considering the new wording of arts. 79 and 125(5.1.(б))  of the new Russian Constitution:

Article 79

«Decisions of the intergovernmental bodies, adopted based in the provisions of the international treaties of the Russian Federation in their interpretation which contradicts the Constitution of the Russian Federation, are not executed in the Russian Federation».

Article 125 (5.1.(б)

«The Russian Constitutional Court:

Б) subject to federal constitutional law  shall rule on the possibility of execution of decisions of the interstate bodies adopted of the basis of provisions of international treaties of the Russian Federation in their interpretation contrary to the Constitution

To be noted, the previous wording of Russian Constitution:

  • already prescribed it took precedence other international treaties (art. 15, art. 125(2), 125 (6)) (international treaties and agreements form an integral part of the Russian legal system, but shall not be liable for enforcement and application in Russia if not corresponding to the Constitution):
  • as from 2015 the referred federal constitutional law (On Russian Constitution Court) has already  introduced the authorities of the Russian Constitution Court to declare decisions of international human rights bodies unenforceable when “incompatible” with the Constitution. 

As a result the new declarations, although sad, did not seem to change the picture drastically.

What caught my eye later, is that in the course of legislation process the bill was amended to include the provisions as follows;

  • Art. 79.1:

«Russian Federation takes measures aimed at supporting and strengthening of international piece and safety, at ensuring peaceful coexistence of states and people, at prevention of interference in internal affairs of the state».

  • Art 125 (5.1. (б))

The amendment further extended the powers of the Russian Constitutional Court authorizing it :

  • [subject to federal constitutional law] to rule on possibility of execution of decision of a foreign or international (interstate) court, foreign or international arbitration, which puts obligations on the Russian Federation, in case it contradicts the public order of the Russian Federation.

In absence of any official cover letter or other public justification thereof I could only rely on the comment from the Russian Constitutional Court opinion dated March 16, 2020, No 1-3 (following the review of this amendment to the Constitution, amongst others) stating this mechanism “is not intended to promote the rejection of international treaties and decisions of interstate jurisdictional bodies based on them, but is aimed at devising a constitutionally acceptable way for the Russian Federation to implement such decisions while ensuring the supreme legal force of the Russian Constitution in the Russian legal system, which includes international treaties as its integral part”.

According to Russian state court rulings on the sanctions issues, sanctions are considered to be of public effect and threat to Russian sovereignty:

  • Siemens cases, 2017:  “the effect of satisfaction of plaintiff’s claims would be the de jure enforcement of the EU economic sanctions on the territory of the Russian Federation, which would be manifestly contrary to the public order of the Russian Federation and would prejudice the sovereignty of the Russian Federation state»;
  • Russian Constitutional Court Decree No 8-П dated February 13, 2018: “economic sanctions are imposed in contravention of multilateral international treaties”, with the  possibility to construe the conduct of foreign parties following the sanctions regime as “in bad faith”;
  • with counter-sanctions being recognized as “special economic measures applied as a reaction to an internationally wrongful act or an unfriendly act of a foreign state threatening the interests and security of the Russian Federation” (Russian Supreme Court ruling dd 11.11.2014 case No АКПИ14-1124).

Back in July 2020 and since :

  1. the federal constitutional law on Russian Constitutional Court was not updated to include the sanctions related or any similar issues,  
  2.  international arbitration (foreign) court resolutions on sanctions issues as issued against the person, not against Russia directly, but require recognition by the Russian state court for enforcement (which I construe as putting relating indirect obligations on Russia),

I assumed that the new provisions, though following the logic of the recent Russian APC amendment I wrote about earlier (Russia vs international sanctions. Act 1), did not have immediate effect, but formed the basis for further strengthening of Russian anti-sanctions regime.

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